1. Plaintiffs 1 and 2 are the sons of plaintiffs 3 and 4, who were added as the legal representatives of the second plaintiff who died during the pendency of the suit. One Mohamed Ghouse Khan Sabhi, the father of the fourth plaintiff, executed a gift deed on 19-9-1938 in respect of the superstructure of house No. 13 Fakir Sated Street, first lane, Triplicate, Madras in favour of his grandsons, plaintiff 1 and 2, who were then minors represented by their father and guardian Mohamed Mahaboob Khan, the fourth plaintiff in the suit. Ex. A-1 is a registration copy of the gift deed and it shows that the property has been valued at Rs. 1000. At the time of the gift there was a mortgage Ex. B-1 dated 25-4-1938, executed by Mohamed Ghouse Khan for Rs. 300, over the property covered by the gift deed. The donor directed the mortgage to be redeemed from out of the income and profits from the property gifted by him. The fourth plaintiff paid only a sum of Rs. 55 towards the principal till the end of 1946. On 10th October 1946, he agreed to sell the property covered by the gift on behalf of his minor sons to one Abdul Azeez Sahib and received Rs. 300 and redeemed the mortgage Ex. B-1 by paying Rs. 245 on 14-12-1946, as evidenced by the endorsement Ex. B-2. He executed the sale deed, Ex. B-3 dated 7-6-1947, as guardian of his minor sons in favour of Abdul Aziz Sahib for Rs. 500 and received the balance of consideration of Rs. 200 for the maintenance expenses of the minor sons.
Abdul Aziz Sahib sold the property purchased by him under Ex. B-3 to one Gulam Ahmed Sahib for Rs. 700. Gulam Ahmed Sahib sold the superstructure on the western portion described as 13-A Fakir Sahib, St., first lane, Triplicane, under Ex. B-9, dated 3-1-1948 for Rs. 5500 in favour of Mohamed Yusuf Sahib. The heirs of Mohamed Yusuf Sahib at first executed the mortgage Ex. B-10 dated 10-9-1956 in favour of one Bano Prasad Davay and subsequently sold the property under Ex. B-14, dated 29-4-1957 in favour of the first defendant. Gulam Ahmed Sahib sold the eastern half of the superstructure purchased by him under Ex. B-4 in favour of Muthu Kannammal for Rs. 1000 under Ex. B-19 dated 26-7-1947, and she in here turn sold the property to Amirthavalli Ammal under Ex. B-22, dated 20-8-1948 for Rs. 1500. The second defendant is the mother and heir of Amirthavalli Ammal. It should be noted that the first defendant and the second defendant's daughter Amirthavalli Ammal have purchased the sites of the respective superstructure from the owner Krishnadas Lala under Ex. B-12 and Ex. B-23 respectively. The third defendant has been impleaded as the mortgagee from the said Amirthavalli Ammal. Defendants 4 to 7 are the vendors of the first defendant. The 8th defendant was impleaded under Order 8-A C. P. C. at the instance of the first defendant.
2. Plaintiffs 1 and 2 file the suit in forma paupers for a declaration that they entitled to Item 1 and 2 of the plaint A Schedule properties, which are described as superstructure being former door No. 13 and now 12 Fakir Sahib St. first lane, Triplicane, by virtue of the gift deed under the original of Ex. A-1 in their favour, and for possession of the same with past mesne profits Rs. 870 form the first defendant and Rs. 1080 from the second defendant and future mesne profits. Their case is that the alienation made by their father is viod and not binding on them. The suit was contested by defendants 1 and 2. The learned Third Assistant Judge, City Civil Court, Madras, found that the sale deed Ex. B-3 executed by the fourth plaintiff as guardian of his minor sons was not binding of plaintiffs 1and 2, that defendants 1 and 2 were however entitled to rights by way of subrogation in respect of the mortgage debt of Rs. 245, discharged out of the sale consideration of Ex. B-3, that the claim of the first plaintiff was barred by Art. 44 of the Limitation Act as he had attained majority more than three years prior to suit and that though defendants 1 sand 2 had effected improvements as claimed by them, there was no evidence about the value of the same and he relegated the plaintiffs to a separate suit for partition and separate possession in respect of their 5/12th share in the suit properties. The first plaintiff has filed the appeal in so far as the trial court had negatived the portion of his claim and defendants 1 and 2 have filed a memorandum of cross-objections to the extent to which the trial court had decreed the suit against them.
3. The main question for consideration in this appeal is the validity of the sale deed Ex. B-3 dated 7-6-1947, executed by the fourth plaintiff as guardian of plaintiff 1 and 2 for Rs. 500. An inter-lineation has been made in para 5 of the plaint that the property has been sold under Ex. B-3 by the fourth plaintiff, "to one Abdul Azeez at a gross undervaluation.'' The learned Third Assistant Judge City Civil Court, Madras, has discussed this aspect of the case in para 12 of his judgment and found that "the property was not sold for a proper price'' under Ex. B-3. The burden of proof is on the plaintiffs to prove that the sale under Ex. B-3 is for a low price, as contended by them. It is true that in the gift has been valued as Rs. 1000. But the sale deed Ex.. B-3 was executed on 7-6-1947. The recital therein shows that the agreement of sale took place on 10-10-1946. The recital in the sale deed is that the superstructure is in a dilapidated condition. The learned Third Assistant Judge has strongly relied on Ex. B-4, under which the superstructure has been sold within seven days of Ex. B-3 for Rs. 700 as a strong circumstance to show that the price mentioned in Ex. B-3 is no a proper one. Though the superstructure might have been worth Rs. 1000 at the time of the gift in 1938, it decreased in value evidently as it got dilapidated. It is significant to note that during the course of 8 years the fourth plaintiff was able to pay only a sum of Rs. 55 towards the principal of the mortgage. debt.
The learned Third Assistant Judge has erred in relying on the fact that the property was sold for Rs. 700 within a few days from the date of Ex. B-3 to infer that the property was not sold for a proper price by the legal guardian of plaintiffs 1 and 2. Though the sale deed Ex. B-3 is dated 7-6-1947, it is clear from the recitals that the fourth plaintiff agreed to sell the property on behalf of his minor sons for Rs. 500 even as early as 10-10-1946. The rise in price by Rs., 200 from 10-10-1946 to 16-6-1947 may be due to several causes. It may be that the vendee under Ex. B-3 spent some money and effected improvements. Even in Ex. B-4 there is a recital that the vendor had agreed to sell the property as the purchase had offered to purchase the property for the advantageous sum of Rs. 700. It is possible that on account of the fact that advantageous or fancy price was offered by the vendee under Ex. B-3, the property was sold for Rs. 700 and that it does not really represent the reasonable market price at that time. The fourth plaintiff could have been examined to speak to the circumstances under which he sold the property under Ex. B-3 for a low price as pleaded by the plaintiffs. But he has not been examined as a witness in this case. In the absence of any evidence about the value of the then existing superstructure on the suit property on 10-10-1946, we are unable to find that the sale under Ex. B-3 is not a proper price.
4. The learned advocate for the appellant contended that under the terms of the gift deed, the fourth plaintiff has no right to sell the property given to his minor sons under the gifts deed and that he is entitled only to utilise the income from the property for the maintenance of his minor sons. There is no terms in the operative portion of the gifts deed restraining the fourth plaintiff as guardian of his minor sons from alienating the property gifted to then even in case of necessity. The relevant clause in the preamble portion of the gift deed mentioned the fact that the guardian for the minor has no right to sell or alienate etc. the gifted property probably refers to the restrictions imposed on the guardian of his minor under Mohamedan law. The fourth plaintiff is the legal guardian of his minor sons under the Mohamedan Law. Section 362 at page 332 of Mullah's Principles of Mohamedan Law, 16th Edn. deals with the power of a legal guardian to alienate the immoveable property of his minor son under Mohamedan Law and it is as follows:
"A legal guardian of the property of a minor (S. 359) has no power to sell the immoveable property of the minor except in the following cases, namely, (1) where he can obtain double its value; (2) where the minor has not other property and the sale is necessary for his maintenance; (3) where there are debts ofthe deceased, and no other means of paying them; (4) where there are legacies to be paid and no other means of paying them; (5) where the expenses exceed the income of the property; (6) where the property is falling into decay, (7) when the property has been usurped, and the guardian has reason to fear that there is no chance of fair restitution."
Under S. 10 of the Transfer of Property Act, where property is transferred subject t o a condition or limitation absolutely restraining the transferee or any person claiming under him from parting with or disposing of his interest in the property, the condition or limitation is void, except in certain cases. At page 98 of Mullah's Transfer of Property Act, 5th Edn. it is stated on the strength of the decision in Renaud v. Tourangeau, 1867 LR 2 PC 4 that a restriction on alienation for a period of 20 years was contrary to the general principle of jurisprudence and the opinion of Jarman that it seems now settled that a restraint on alienation is bad even if it is limited in point of time is referred to in the context. At page 102 of the same book, the learned author has observed that the prohibition of a condition in absolute restraint on alienation enacted in Section 10 of the Transfer of Property Act conforms to Hindu and Mahamedan law. Section 460 in Tayyibji's Muslim Law, 4th Edn. at page 453, is relevant for the present discussion and it is as follows:--
"Under Hanafi law, when it is clear that a donor has made a hiba (viz., a present gift of the full and absolute ownership of certain property), and yet the donee's rights therein are purported to be restricted for his life (or for any other limited period) or he is prohibited from alienating it, the gift operates absolutely; the purported restrictions are invalid and the donee takes the property not only for his own life with powers of alienation, but (by reason of the fact that the transfer is a hiba) he takes such an interest in the property that after his death it devolves upon his heirs".
Thus the restrictions sought to be imposed by the donor under the original of Ex. A-1 on the power of alienation which the father of the minors as legal guardian possessed under the Mahomedan law are invalid. It is not open to the donor under Mahomedam law to curtail the powers of the legal guardian when he gifts the property in favour of the minors. The learned advocate for the appellant referred to pages 136 and 137 of Ameer Ali's Mohamedan law, 4th Edn., in support of his contention that a Mohamedan donor can make a gift of immoveable property imposing certain restrictions on the made in which the income should be utilised. The discussion of the subject by the learned author is based on the decision. Nawab Umjad Ali Khan v. Mt. Mohumdee Begum, 1867-11 Moo Ind App 517. The father of the appellant in that case transferred and endorsed a considerable number of Government promissory notes which then stood in his name to the name of his son. But the income of the notes was all along remitted to the father under the directions of the appellant. It was contended in that case that the gift by the father was invalid as it was subject to his participating in the income during his life time. The Privy Council dealt with the same in the following passage at page 547-
"It remains to be considered whether a real transfer of property by a donor in his lifetime under the Mohamedan Law, reserving not the dominion over the corpus of the property, nor any share of dominion over the corpus, but simply stipulating for and obtaining a right to the recurring produce, during his lifetime, is an incomplete gift by the Mohamedan law. The text of the Hedaya seems to include the very proposition and to negative it. The thing to be returned is not identical, but something different. See Hedaya tit. "Gifts" Vol. III book XXX page 294 where the objection being raised that a participation of property in the thing given invalidates a gift, the answer is 'The donor is subjected to a participation in a thing which is not the subject of his grant, namely, the use (of the whole indivisible article) for his gift related to the substance of the article, not to the use of it. 'Again if the agreement for the reservation of the interest to the father for his life be treated as a repugnant condition, repugnant to the whole enjoyment by the donee, here the Mohamedan law defeats not the grants, but the condition. Hedaya tit, 'gifts' Vol. III book XXX page 307. But as this arrangement between the father and the son is founded on a valid consideration, the son's undertaking is valid, and could be enforced against him in the courts of India as an agreement raising a trust and constituting a valid obligation to make a return of the proceeds during the time stipulated. The intention of the parties, therefore, is not found to violate any provision of the Hedaya, and the transfer is complete."
Thus the above passage in the Privy Council decision referred to in Ameer Ali's Mohamedan law far from supporting the contention of the learned advocate for the appellant really show that if the donor under the original of Ex. A-1 had imposed a condition restricting alienation by the legal guardian, apart from those envisaged under the Mohamedan law,, such a condition is void. In the Privy Council case the donee agreed to the stipulation that during the lifetime ofthe donor he should apply the accruing interest to certain religious and charitable purpose and such a condition is really in the nature of a trust created by an agreement of parties and it did not violate any provision of Mohamedan law. But as pointed out by Ameer Ali at page 134 of his book, according to the Hanafi Law any derogation from the completeness of the gifts is null; and if the intention to give to the donee the entire subject-matter of the gift be clear, subsequent condition derogating from or limiting the extent o the right would be null and void. When once the donor under the original of Ex. A-1 had given the property covered by it absolutely to his grandsons represented by their legal guardian, it was not open to him to impose further restrictions as regards alienation apart from or in addition to those existing under the Mohamedan law.
5. We shall proceed to deal with the main question for consideration in this appeal, namely, whether the sale deed Ex. B-3 executed by the fourth plaintiff as the legal guardian of his minor sons is valid. If the recitals in the document are accepted as true, there could be no difficulty in upholding he sale deed as valid. Thus the recitals in the sale deed show that the superstructure gifted to the minors was in a dilapidated condition and a portion of it had fallen down in the rains, that the minors had no funds to repair it, that the mortgagee had brought the superstructure to sale in public auction and that if it was allowed to be sold, it would not have even fetched the principle amount of the mortgage debt of Rs. 300. Though the sale deed was executed only in June 1947 and the suit has been filed in April 1958, the contesting defendants 1 and 2 made no attempt to examine any one connected with the document to prove the truth of the recitals to support the claim that there was a justifiable necessity for the same. Defendants 1 and 2 are the only witnesses examined on the side of the defendants and they do not know about the circumstances under which the sale deed Ex. B-3 came into existence. It is not an ancient sale deed and it is, therefore, not possible to rely on the recitals as prima facie true. Sri C. R. Krishna Rao relied on an unreported decision in App. No. 28 of 1960 (Mad) on the file of this court and the decision in Kothanda Naidu v. Kuppayya Naidu, (1960) 73 Mad LW 222, in support of his contention that the appellant should have examined his father in support of his case.
Both these decision relate to cases in which the alienations made by the father were attacked by the sons as tainted by immorality and illegality. The burden of proof in such a case is on the son to establish that the debts are avyavaharika debts. In (1960) 73 Mad LW 222 it is observed that it is not open to persons in the position of the minor plaintiffs-appellants in that case to plead minority as an excuse for ignorance upon essential matters upon which they should have necessarily gathered full particulars before litigating in courts of law and that while minors have certain rights in law protecting them, where the burden lies upon them to allege and establish certain facts, that burden is not lessened by virtue of mere minority, so long as they are parties to a suit. Sri C. R. Krishna Rao relied on the observations of the Privy Council in Jagannath v. Shrinath, AIR 1934 PC 55 in support of his contention that the appellant was in a position to examine his father was a witness to prove his case and that an adverse inference should be drawn against him on account of his failure to examine his father as a witness. The suit in that case was brought by the minor sons of R and B, who as eldest members of the family and heads of their respective branches, had attested the sale deed executed by one M, the family manager for discharging old debts.
The first defendant in the suit gave evidence that he took care to enquire all the creditors whether the debts were really due and he was told that they were and he stipulated that he should see himself to the application of this part of the consideration and get back and retain as vouchers the documents held by the creditors. It is clear from the decision that in their Lordship' opinion these facts raise at least a prima facie case that the sale was effected for family necessities and for the payment of antecedent debts. It is in these circumstances they commented on the non-examination of R and B by their sons who filed the suit collusively practically at the end of the limitation period. The learned advocate for the contesting respondents can rely on this decision if they had adduced prima facie evidence to show that there was necessity for the alienation made under Ex. B-3. But as already pointed out, the is absolutely no evidence, apart from the interested recitals in the document to show that there was any necessity for the same. There is nothing to show that the mortgagee under Ex. B-1 took steps to enforce the mortgage or that he even passed or repayment of the loan.
It is true that under the terms of Ex. B.3 and under the general law defendants 1 and 2, as successors-in-interest of the transferee under Ex. B-3, are entitled to the right of subrogation in respect ofthe sum of Rs. 245, of the sale consideration under Ex. B-3 utilised for the discharge of the mortgage Ex. B-1, as evidence by Ex. B-2, and this has been granted by the trial court. We agree with the finding of the trial court that the sale deed Ex. B-3 is not for a necessary or a binding purpose and it is therefore invalid.
6. The learned advocate for the appellant urged that the sale under Ex. B-3 is void and not merely void able and that Art. 144 of the Limitation Act of 1908 will apply to the facts of this case. We have already found that there is nothing in the operative portion of the gift deed restricting the alienation by the fourth plaintiff as guardian of his minor sons and that even assuming that the donor has imposed such restrictions, they are invalid in so far as they purport to restrain the powers of legal guardian under Mohamedan Law to deal with the property of his minor sons. The learned advocate for the appellant referred to the law relating to Minors by Trevelyant 5th Edn., page 66, where it is stated that any donor by will or deed my appoint a trustee or manager of the property during the minority of the donee, but he cannot impose any conditions or restrictions upon the management of property which the minor may have acquired otherwise than by such will or deed. On the strength of this statement of law, he argued that the donor under the original of Ex. A-1, could appoint the fourth plaintiff as guardian of the then minor plaintiffs 1 and 2 and impose restrictions in respect to the property covered by the gift deed. But such restrictions could only be in conformity with the general law or the personal law relating to the parties.
We have already pointed out that the donor under the original of Ex. A-1 cannot impose restrictions on the powers of the legal guardian under the Mohamedan law in dealing with the properties of the ward in addition to the restrictions already contained in the Mohamedan law. The learned advocate for the appellant relied on S. 28 of the Guardians and Wards Act in support of his contention that, "where a guardian has been appointed by will or other instrument his power to mortgage or charge or transfer buy sale, gifts, exchange or otherwise, immoveable property belonging to his ward is subject to any restrictions which may be imposed by the instrument, unless he has under the Act been declared guardian and the court which made the declaration permits him by an order in writing, notwithstanding, the restriction, to dips of any immoveable property specified in the order in a manner permitted by the order." But it should be noted that the fourth plaintiff is the legal guardian of his minor sons and he was not appointed as the legal guardian for the first time under the original of Ex. A-1. further under S. 30 of the Guardians and Wards Act, "a guardian in contravention of either of the two prior section is voidable at the instance of any other person affected thereby."
The finding of the learned Third Assistant Judge of the City Civil Court, Madras that the sale under Ex. B-3 is only voidable and not void and that the suit not having been filed within three years of the first plaintiff having attained majority is barred against him under Art. 44 of the old Limitation Act is correct.
7. The learned advocate for the appellant contended that the first plaintiff was really born on 6-7-1937, as evidenced by the entry in the S.S.L.C. certificate, Ex. A-2, and that the claim of the first plaintiff will not be barred by limitation even if Art. 44 of the Limitation Act is invoked. He filed C. M. P. 529 of 1970 to receive the extract from the record sheet of the Corporation School showing the date of birth of the first plaintiff as 6-7-1937. Thugh the appellant had obtained this document on the date of the arguments in the trial court, he did not care to file it and there is really no ground to receive it at this late stage. The extract is no doubt in conformity with the date of birth given in the S.S.L.C. book. It is quite possible that the entry in the S.S.L.C. book was made on the strength of the earlier school records. If really the first plaintiff was born on 6-7-1937 as evidenced by the S.S.L.C. book and the record sheet of the Corporation School, he would have been only one year two months and two weeks old, on the date of the gift deed. But his age is given in the gift deed as three years and two months and the age of the second plaintiffs is given as two months. In the sale deed Ex. B-3, the ages of plaintiffs 1 and 2 are given in conformity with those mentioned in the gift deed.
In the sale deed Ex. B-3 it is stated that the first plaintiff is aged about 11 1/2 years and the second plaintiff is aged about 8 years. Thus, according to both the gift deed and the sale deed Ex. B-3, there is a difference of about three years between the two plaintiffs. When the first plaintiff was cross-examined, he pleaded ignorance whether his brother was three years younger to him. If the first plaintiff was only on year, two months and two weeks old at the time ofthe gift deed under the original of Ex. A-1 and his brother was three years younger to him, the second plaintiff could not have been in existence at the time ofthe gift deed. Further, the grandfather of plaintiff 1 and 2 could not have made any mistake in mentioning the age of plaintiff 1 and 2 as three years two months and two months respectively in the gift deed. The fact that the second plaintiff was born only two months prior to the gift deed would have been prominently in the mind of the grandfather when he executed the gift deed. If really the first plaintiff was only one year, two months and two weeks old, his grandfather would not have described him as three years and two months old in the gifts deed.
Further, it is clear from the evidence of the first plaintiff that he gave his age as 22 in Ex. B-4 dated 21-9-1958. This would show that he was more than 21 years on the date of suit. The only explanation of the first plaintiff is that he has given his age approximately in Ex. B-24. There can be no doubt that the first plaintiff had attained majority more than three years prior to suit and it is not possible to rely on the date of birth given in the S.S.L.C. books or the Corporation extract. In any event, the appellant has failed to prove that he has filed the suit within three years of his attaining majority and it follows that the suit is barred by limitation so far as the first plaintiff's half share in the suit property is concerned.
8. The learned third Assistant City Civil Judge half that the 1/12th share in the suit property inherited by the fourth plaintiff as the heir of the second plaintiff would devolve on the contesting defendants on the ground that he was estopped from questioning the sale deed Ex. B-3 executed by him. But he failed to note that in order to invoke the principle of estoppel contained in S. 43 of the Transfer of Property Act, it is necessary to show that the fourth plaintiff who has succeeded to the 1/12th share of his on in his individual capacity made an erroneous or false representation in the same individual capacity to the vendees under Ex. B-3. But it should be noted that the fourth plaintiff has executed the sale deed Ex. B-3 as guardian of his minor sons and not in his individual capacity. If any authority is needed for the above legal position, it is found in the Privy Council decision in Syed Nurul Hossein v. Sheosahai, (1892) 19 Ind App 221. it is unnecessary to go into this question in detail as the fourth plaintiff has not preferred any appeal to this Court and the decree and judgment in so far as they are against him have become final.
9. There can be no doubt in this case that considerable improvements have been effected not only be defendants 1 and 2 but also by their predecessors-intitle. Under Ex. B-9 dated 3-1-1948, Ghulamm Ahmed sold the western portion of the property covered by the gift, namely, door No. 13-A Fakir Sahib 1st lane, for Rs. 5500 in favour of Mohamed Yusuf Sahib. But Ghulam Ahmed purchased the property under Ex. B-4 only for Rs. 700, though it is stated in the document that the vendor agreed to sell the property as the price was advantageous to him. There can be no doubt that on account of considerable improvements made to the property, the vendee under Ex. B-9 agreed to purchase the property for Rs. 5500, though his vendor paid only Rs. 700 within six months prior to that date. The learned Advocate for the contesting respondents urged that the eastern portion was originally a vacant site and that there was only one building on the entire suit property. Under Ex. B-20, Ghulam Ahmed sold his leasehold right in the vacant site to Muthu Kannammal for RS. 1000. It appears from the earlier document Ex. B-19 dated 26-7-1947 that he had agreed to put up a superstructure on the eastern portion in a tenantable condition for Rs. 1750 and received a sums of Rs. 1800. But it appears fro, Ex. B-20 that he only put up walls on three sides and he therefore executed the sale deed Ex. B-20, after receiving an additional sum of Rs. 200 making a total consideration of Rs. 1000.
There can be no doubt that whatever superstructure originally existed at the time of the gift evidenced by the original of Ex. A-1, it was not in a very good condition, that it was demolished and that the present superstructures were subdequently put up by the subsequent purchasers.
10. The learned advocated fro the appellant relied on a decision of a single Judge of the Calcutta High Court in Negendrabala Dasee v. Panchanana Mounrie, ILR 60 Cal 1388 = (AIR 1934 Cal 290) that a claim for improvements under S. 51 of the Transfer of Property Act can be made only by the first transferee and not by his representative in interest. The reason given in the decision is that in order to invoke S. 51 of the Transfer of Property Act, it is necessary for the person claiming compensation for any improvements to show that he was a transferee, that he has made improvement, that he has made such improvement believing in good faith that he was absolutely entitled to the property and that he was evicted. It is held in that decision that such a right is neither heritable nor transferable and apart from S. 51 of the Transfer of Property Act, there are no equitable principles under which the evictee can claim compensation. Chitaley and Appu Rao in their Commentary on the Transfer of Property Act, 4th Edn. at page 697, have referred to this decision and submitted that the view expressed therein is not correct. The actual decision in that case can be supported on the ground that the defendant who claimed compensation was the purchaser of the property at a court sale and that he cannot claim to be a transferee within the meaning of S. 51 of the Transfer of Property Act.
The principle underlying S. 51 of the Transfer of Property Act is that a man should not enrich himself at the instance of another and this principle cannot be rendered inapplicable merely because a transferee is succeeded by another. In Narayanaswami v. Rama Ayyar, ILR 53 Mad 692 = (AIR 1930 PC 297) their Lordships of the Privy Council have held confirming the decision of this court that the heirs of the transferee are entitled to claim compensation if they are evicted at the instance of the true owner. The view expressed by the single Judge of the Calcutta High Court that S. 51 of the Transfer of Property Act provides for a relief granted upon equitable principles to a person who does something to property and thereby incurs expenses, upon that person losing that property and that such a right is not heritable or transferable is really putting too narrow construction, on the term "transferee". In Bhagwat Dayal v. Ramratan, "Air 1922 PC 91 their Lordships of the Privy Council have held that where the purchaser from a Hindu widow causes permanent improvements to be made whereby the jama of the property is increased, the increased rent that is property attributable to the improvements can be set of against the mesne profits, even although it was not actually executed by the person in possession at the moment when the decree for possession was made.
It was urgued in that case than an allowance could not be made because the improvements had in fact been executed by the person, who had been the original purchaser from the vendor who had a limited estate, and that he had again sold and that it was the purchaser from him who was in possession at the time when the final purchase of the property was made. Their Lordships of the Privy Council have expressed their opinion that there is no substance in this contention. They have held that the increased rent, that is property attributable to the improvements can be set off against the mesne profits, even although it was not actually executed by the person in possession at the moment when the decree for possession was made. There is nothing in S. 51 of the Transfer of Property Act to suggest that the person who is evicted cannot be the successor in interest of the original transferee in order to claim compensation for improvements. Even under S. 53 of the Transfer of Property Act, a subsequent transferee can claim a benefit of that section if the first transferee acted in good faith and purchased the property for consideration. Thus if the plaintiffs had succeeded in their claim and got an order for eviction, the defendants can certainly claim the value of improvements before they are actually evicted.
But it is clear from the findings already given by us that the plaintiffs are entitled to only 5/12th share in the lease-hold right in the superstructure, which was gifted under the original of Ex. A-1.
11. The learned Third Assistant City Civil Judge has erred in dismissing the suit and relegating the plaintiffs to a separate suit for partition. The plaintiffs came forward with a claim that they were entitled to the suit property which consisted of superstructures on sites which originally belonged to Krishnadas Lala and subsequently acquired by defendants 1 and 2. But as the first plaintiff lost his moiety in the said superstructures by reason of limitation, the heirs of the second plaintiff became co-owners with the contesting defendants 1 and 2. Strictly speaking plaintiffs 1 and 3 alone can be considered to be co-heirs as the trail court has held that the fourth plaintiff has lost his right by reason of estoppel and he has not preferred an appeal. The co-ownership is only in respect of the leasehold right. We have already pointed out that the first defendant and the daughter of the second defendant have purchased the sites of the suit property form the original owner Krishnadas Lala when he took proceedings by way or eviction against them as tenants. The plaintiffs cannot claim their 5/12th share in the superstructures put up by defendants 1 and 2 and their predecessors-in-title without paying their share of the cost of improvements. it is true there was originally a superstructure at the time of the sale under Ex. B-3
But it was in dilapidated condition. The fact that the superstructure fetched a rent of Rs. 22-50 at the time of Ex. B-5 is no ground for inferring that the superstructure which existed at the time of Ex. B-3 would have fetched the same rent. It is quite possible that the superstructure was fetching a rent of Rs. 22-50 per month at the time of Ex. B-5 on account of subsequent improvements. The superstructure which existed at the time of Ex. B-3 would have completely fallen into runs and it is not reasonable to take in account more than the value of thee building materials found in it. We have already found that the sale under Ex. B-3 is for a proper price. The building materials could not in any event have exceeded the sale price. The value of the aid building materials should be estimated and deducted from the value of the improvements and the proportionate 5/12th share in respect of the said sum and the mortgage amount of Rs. 240 should be paid by the plaintiffs before they can claim 5/12th share in the superstructure. Otherwise their right is only to 5/12th share in the notional leasehold right in the suit property. The contesting defendants 1 and 2 as major sharers can claim their right to purchase the said right of the plaintiffs if proceedings are taken under the Partition Act.
12. In the result, there will be a preliminary decree declaring the plaintiffs' right to 5/12th share in the leasehold right of the suit property subject to their paying their proportionate share of the mortgage amount of Rs. 245. The plaintiffs will be entitled to claim their 5/12th share in the superstructure on their paying the proportion are share of the most of improvements less the proportionate share of the building materials of the dilapidated building which originally existed. The plaintiffs as co-owners are not entitled to any mesne profits against the contesting defendants 1 and 2 as it could no be aid that the income which they would have obtained from the leaseholld right, in the dilapidated building which originally existed will in any manner exceed the proportionate interest payable on the mortgage Ex. B-1.
13. The appeal and the memorandum of cross objections are allowed to the extent stated above, but in the circumstances of the case, the parties will bear their respective costs. We see no sufficient ground to alter or amend the decree of the trial court as regard the payment of court-fee. But the appellant on the one hand and the contesting defendants 1 and 2 on the other shall pay the court-fee on the memorandum of appeal in equal halves.
14. Order accordingly.